Dram Shop liability arises out of a vendor’s duty to the public not to sell liquor to visibly intoxicated people, so while legislation seeks to shift some responsibility to alcohol providers, violations are often difficult to prove.

By Andrea M. Alonso and Kevin G. Faley

October 14, 2020

New York’s Dram Shop Act affords individuals who are injured as a result of another’s intoxication a cause of action against the party that unlawfully sold, provided, or assisted in providing, the alcohol to the intoxicant. The legislation targets vendors, usually a bar or restaurant, that sell alcohol to visibly intoxicated adults, and social hosts who knowingly allow minors to drink.

Alcoholic Beverage Control Law §65 defines an unlawful sale of alcohol. It is illegal for any vendor of liquor to sell, deliver, or give away alcoholic beverages to any person who is under 21 years of age or “visibly intoxicated.” General Obligations Law §11-101 provides a right of action against a vendor who unlawfully sold alcohol to an intoxicated individual. In order to recover under GOL §11-101, a plaintiff must prove that the vendor unlawfully sold or procured alcohol for the intoxicant while the intoxicant was “visibly intoxicated” and that there was a reasonable connection between the intoxication and the injury.

Visible Intoxication

“Visible intoxication” may be established through circumstantial evidence, including expert and eyewitness testimony. Testimony that a tortfeasor had alcohol on her breath, slurred her speech, had bloodshot eyes, or was unsteady on her feet evinces “visible intoxication.” Conklin v. Travers 10 N.Y.S.3d 609 (2d Dept. 2015) (triable issue of fact where, despite the deposition testimony of several witnesses who testified that the she did not exhibit signs of intoxication, the police sergeant who arrested the tortfeasor after the accident testified that she was exhibiting the above signs of intoxication).

Proof of a high blood alcohol content alone is insufficient to establish the visible intoxication standard required by Alcoholic Beverage Control Law §65. See Flynn v. Bulldogs Run Corp. 100 N.Y.S.3d 35 (2d Dept. 2019) (no triable issue of fact where, although the decedent’s blood alcohol content indicated that he was intoxicated at the time of his death, a bartender testified that that the decedent was not visibly intoxicated when he was served two alcoholic beverages with his lunch and was refused service later that day because he appeared intoxicated).

When combined with other circumstantial evidence, a high blood alcohol content may support a finding of visible intoxication or that an illegal sale was reasonably or practically connected to the resulting damages. See Sullivan v. Mulinos of Westchester, Inc. 901 N.Y.S.2d 663 (2d Dept. 2014) where, based on witness testimony and the decedent’s blood alcohol content at the time of the accident, the Second Department held that a jury could reasonably conclude that the decedent remained intoxicated throughout the night and that there was thus a reasonable and practical connection between the alcohol served at the first of two establishments and the damages sustained in the accident.


Although proximate cause is not required, there must be some reasonable connection between the sale of alcohol and the plaintiff’s injury. In Tavarez v. Sidetracks, LLC, 9 N.Y.S.3d 368 (2d Dept. 2015), a patron was allegedly attacked by an unknown assailant outside a dance club. While the club owners failed to eliminate all triable issues of fact as to whether they owed a duty to the plaintiff, they were able to establish, prima facie, that no reasonable or practical connection existed between any allegedly illegal sale of alcohol and the plaintiff’s injuries, thus precluding the plaintiff’s Dram Shop cause of action.

Voluntary Intoxication

Because Dram Shop liability arises out of a vendor’s duty to the public not to sell liquor to visibly intoxicated people, sellers of alcohol owe no duty to protect consumers from the results of their own voluntary intoxication. In O’Gara v. Alacci 887 N.Y.S.2d 106 (2d Dept. 2009), an intoxicated pedestrian was struck by a car and commenced a negligence action against the driver. The driver then commenced a third-party action against the bar for unlawfully serving alcohol to the visibly intoxicated plaintiff. The Second Department held that, although the bar had no duty to the plaintiff for her own voluntary intoxication, because the driver who struck her was a member of the “public,” he could seek contribution from the bar for breaching its duty.

Just as an intoxicated person cannot maintain a cause of action under the Dram Shop Act for injuries sustained as a result of that person’s own intoxication, “guilty participation” on the part of a third party may also preclude a tavern’s liability. In Esposito v. Rail Bar & Grill Corp. 93 N.Y.S.3d 394 (2d Dept. 2019), a bar patron bought a drink for his subsequent assailant. The fact that the plaintiff provided the very drink that he then claimed had been unlawfully served to his “visibly intoxicated” assailant precluded the patron’s recovery against the bar for personal injuries he suffered due to a subsequent altercation with the assailant. The mere act of purchasing drinks for another is insufficient to constitute guilty participation; guilty participation only occurs when a person causes or procures the intoxication of another which results in the injuries of a third party.


Liability for selling alcohol to minors is distinguishable from that of selling alcohol to adults in that “visible intoxication” is not required. Purchasing or simply contributing money to the purchase of an alcoholic drink for a minor is sufficient to constitute being a guilty participant, regardless of the level of intoxication.

The sale of alcohol to a minor must still bear some reasonable or practical connection to the injuries caused. In Gutierrez v. Devine 958 N.Y.S.2d 566 (4th Dept. 2013), a liquor store that sold alcohol to 17- year-old passenger in a vehicle in which all occupants consumed alcohol was not liable for injuries sustained by another passenger when that vehicle struck a tree. The injuries were not caused by the minor who purchased the alcohol, nothing indicated that the store sold alcoholic beverages to the underage driver who was the tortfeasor, and the store was under no duty to investigate possible ultimate consumers of the alcohol.

One who provides alcohol to a minor must know or have reason to know that the individual is a minor. In Ferber v. Olde Erie Brew Pub & Grill, LLC 78 N.Y.S.3d 209 (2d Dept 2018), a restaurant that served alcohol to a 20-year-old driver was not liable to an injured passenger where the restaurant established through deposition testimony of its bartender that it did not have knowledge or reason to believe that the driver was under 21 years of age.

In Heins v. Vanbourgondien 119 N.Y.S.3d 158 (2d Dept. 2020), the minor driver of a vehicle who consumed alcohol prior to causing an accident brought an action against the convenience stores that sold the alcohol. The Second Department dismissed the action, as the Dram Shop Act does not create a cause of action in favor of one injured as a result of his or her own intoxication regardless of age.

On private property, a person who provides just a single alcoholic drink to a minor can be liable under the Dram Shop Act, but only for third-party injuries that result. In Parslow v. Leake 984 N.Y.S.2d 493 (4th Dept. 2014), an 18-year-old partygoer fell from a second-floor bathroom window at a fraternity house. The court held that the resident defendants did not have a duty to protect the plaintiff from the results of his own voluntary intoxication. The plaintiff’s mother did have a claim against the resident defendants for providing alcohol to her minor son as a third party she could recover medical and other expenses she incurred due to her son’s injuries.

Social Hosts

New York common law provides that social hosts or homeowners generally have a duty to act in a reasonable manner to prevent harm to guests on their property. Their duty is to control the conduct of guests on their property when they reasonably believe that such control is necessary and when they have the opportunity to do so. D’Amico v. Christie 71 N.Y.2d 76, 518 N.E.2d 896 (Ct. App. 1987) Once a guest leaves their property, the host’s duty to that guest generally ends. A host does not have a duty to prevent an intoxicated guest from leaving his or her premises.

In Lizarzaburo v. Schmergel 23 N.Y.S.3d 341 (2d Dept. 2016), while homeowners were away, a housekeeper invited friends over, and one of them drowned in a swimming pool. According to the plaintiff’s expert, the decedent’s blood alcohol content at the time of the accident would have rendered the decedent “severely intoxicated.” Landowners have a common-law duty to keep their premises in reasonably safe condition, and the determination of whether a dangerous or defective condition exists so as to create liability depends on the peculiar facts and circumstances of each case. However, neither the property owner nor her housekeeper had a duty to protect the invitee from injuries resulting from his own voluntary intoxication.


At common law, a provider of liquor was not liable for injuries caused by a drinker, who was deemed to be the sole proximate cause of resulting injuries. The Dram Shop Act created an exception to the common law rule and, as such, must be construed narrowly. (See D’Amico). So, while Dram Shop legislation seeks to shift some responsibility to alcohol providers, violations are often difficult to prove.

Andrea M. Alonso and Kevin G. Faley are partners in the firm of Morris Duffy Alonso & Faley. Annalise Leonelli, a paralegal at the firm, assisted in the preparation of this article.

Reprinted with permission from the October 14, 2020 edition of the New York Law Journal © 2020 ALM Media Properties, LLC. All rights reserved.
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